Attorney discipline for Illegal interception or recording of conversation

At one time, the American Bar Association (ABA) considered it ethical misconduct for an attorney to intercept or record a conversation without the consent of all of the parties to the conversation.[1] The reaction of state regulatory authorities with the power to discipline professional misconduct was mixed. Some agreed with the ABA.[2] Some agreed with the ABA, but expanded the circumstances under which recording could be conducted within ethical bounds.[3] Some disagreed with the ABA view.[4] The ABA has since repudiated its earlier position.[5]

↑D.C. Opinion No. 229 (1992) (recording was not unethical because it occurred under circumstances in which the uninformed party should have anticipated that the conversation would be recorded or otherwise memorialized); Mississippi Bar v. Attorney ST., 621 So.2d 229 (Miss. 1993) (context of the circumstances test); Conn. Bar Ass'n Op. 98-9 (1998) (same); Mich. State Bar Op. RI-309 (1998) (same); Me. State Bar Op. No. 168 (1999) (same); N.M. Opinion 1996-2 (1996) (members of the bar are advised that there are no clear guidelines and that the prudent attorney avoids surreptitious recording); N.C. RPC 171 (1994) (lawyers are encouraged to disclose to the other lawyer that a conversation is being tape recorded); Okla. Bar Ass'n Opinion 307 (1994) (a lawyer may secretly record his or her conversations without the knowledge or consent of other parties to the conversation unless the recording is unlawful or in violation of some ethical standard involving more than simply recording); Ore. State Bar Ass'n Formal Opinion No. 1991-74 (1991) (an attorney with one party consent may record a telephone conversation "in absence of conduct which would reasonably lead an individual to believe that no recording would be made"); Utah State Bar Ethics Advisory Opinion No. 96-04 (1996) ("recording conversations to which an attorney is a party without prior disclosure to the other parties is not unethical when the act, considered within the context of the circumstances, does not involve dishonesty, fraud, deceit or misrepresentation"); Wis. Opinion E-94-5 ("whether the secret recording of a telephone conversation by a lawyer involves 'dishonesty, fraud, deceit or misrepresentation' under SCR 20:8.4(c) depends upon all the circumstances operating at the time"). In New York, the question of whether an attorney's surreptitiously recording conversations is ethically suspect is determined by locality, compare Ass'n of the Bar of City of N.Y. Formal Opinion No. 1995-10 (1995) (secret recording is per se unethical) with N.Y. County Lawyer's Ass’n Opinion No. 696 (1993) (secret recording is not per se unethical).

↑See, e.g., State v. Murtagh, 169 P.3d 602, 617-18 (Alaska 2007) ("undisclosed recording is not unethical"); In re Crossen, 450 Mass. 533, 558, 880 N.E.2d 352, 372 (2008) (undisclosed recording was unethical where it was part of scheme to coerce or manufacture testimony against the judge presiding over pending litigation); Midwest Motor Sports v. Arctic Cat Sales, Inc., 347 F.3d 693, 699 (8th Cir. 2003) (citing ABA Comm. on Ethics and Professional Responsibility, Formal Op. 01-422, which states that recording without consent should be prohibited when circumstances make it unethical); United States v. Smallwood, 365 F.Supp.2d 689, 697-98 (E.D. Va. 2005) (holding that a lawyer cannot ethically record a conversation without the consent of all parties, even though doing so is not illegal under Virginia law). Declaring the new ABA opinion to be an "overcorrection," one bar association explained that secret taping should not be routine practice, but that it should be permitted if it advances a "societal good." Associationn of the Bar of the City of New York Formal Opinion No. 2003-02 (2003). For a New York state bar opinion employing a similar line of reasoning, see Mena v. Key Food Stores Co-operative, Inc., 758 N.Y.S.2d 246, 247-50 (N.Y. Sup. Ct. 2003) (conduct of attorney who obtained a private investigator's services for a client and instructed the client on the use of recording equipment held not to warrant severe sanctions, because there was a compelling public interest in exposing the racial discrimination that was the subject of the secret recordings); see also S.C. Bar Ethics Advisory Op. 08-13 (Nov. 14, 2008) (noting that the S.C. ethical prohibition on undisclosed recording by attorneys, based on the earlier ABA opinion, had not been withdrawn); Tex. Ethics Op. 575 (Nov. 2006) (undisclosed recording by an attorney is not a per se violation of the Texas Disciplinary Rules of Professional Conduct); Mo. Formal Advisory Op. 123 (Mar. 8, 2006) (agreeing with ABA Formal Opinion 01-422). See generallyWiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation.